THE CIVIL AVIATION ACT, 1949 THE CIVIL AVIATION ACT, 1949 (OVERSEAS TERRITORIES) ORDER, 1969 THE AIR TRANSPORT (LICENSING OF AIR SERVICES) REGULATIONS, 2013 ARRANGEMENT OF REGULATIONS REGULATION
1.
Citation and commencement PART I INTERPRETATION
2. 3.
Interpretation Application of Regulations PART II AIR TRANSPORT LICENSING BOARD
4.
Air Transport Licensing Board PART III FUNCTIONS AND DUTIES OF THE BOARD
5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23.
Functions of the Board Minister may give directions Grant of licence Application for licence Publication of particulars of application Objection to application Inquiries by Board Power of Board to determine application without publication of particulars Matters to be considered by Board Duration of licence Provisional licence pending determination of application Provisional licence to continue operation of air service Publication of particulars of decisions Power to revoke or suspend licence Surrender of licence Permission required for use of different types of aircraft other than for which licence issued Fee of licence Proposed fees and charges to be submitted to Board Holder of licence to make monthly return
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24.
Annual report by Board PART IV
RESTRICTION OF UNLICENSED CARRIAGE BY AIR FOR REWARD
25. 26.
Application of Part IV Licence required for use of aircraft on non-scheduled journey PART V EXEMPTIONS
27.
Exemption from requirements of Regulations PART VI GENERAL PROVISIONS
28. 29. 30. 31. 32. 33. 34.
Compliance with enactments relating to air navigation to be condition of every licence Licence not transferable Financial information of applicant to be treated as confidential Construction of expression “provisional licence” No right to continuance of benefits of licence Procedure on case of offences Revocation
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THE CIVIL AVIATION ACT, 1949 THE CIVIL AVIATION ACT, 1949 (OVERSEAS TERRITORIES) ORDER, 1969 THE AIR TRANSPORT (LICENSING OF AIR SERVICES) REGULATIONS, 2013 (Legal Notice 26 of 2013) Made by the Governor, with the approval of the Secretary of State, under section 13 of the Civil Aviation Act, 1949, as extended to the Turks and Caicos Islands by the Civil Aviation Act 1949 (Overseas Territories) Order, 1969. 1. These Regulations may be cited as the Air Transport (Licensing of Air Services) Regulations 2013 and shall come into operation on 1st July 2013.
Citation and Commencement
PART 1 INTERPRETATION
2. In these Regulations, unless the context otherwise requires— “air transport services” means a service performed by an aircraft for the carriage of passengers or cargo by air for hire or reward: Provided that a member of a club carried in any aircraft belonging to the club for the purpose of instruction shall not, if the instructor is also a member of the club, be deemed to be carried for hire or reward, notwithstanding that payment is made for such instruction of carriage; “Board” means the Air Transport Licensing Board constituted by regulation 4; “Civil Aviation Authority” means the Civil Aviation Authority established under section (3) 1 of the Civil Aviation Authority Ordinance “Convention on International Civil Aviation” and “International Air Services Transit Agreement” means respectively, the Convention and the Agreement so styled which were signed at Chicago on behalf of the Government of the United Kingdom on 7th December, 1944; “Day” shall, for the purposes of these Regulations, mean a calendar day;
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Interpretation
“Director of Civil Aviation” means the person for the time being lawfully discharging in the Islands the functions of the Director of Civil Aviation; “Director of Tourism” means the person for the time being lawfully discharging in the Islands the functions of the Director of Tourism; “Governor” means the Governor in Cabinet; “licence” means an air transport licence granted under regulation 6; “the Minister” means the Minister for the time being responsible for air transport; “official member” means an official member of the Board appointed by the Governor to that office; “operator” in relation to an aircraft, means the person having management of the aircraft for the time being; “package tour” refers to a contract for the transport of a number of passengers on collective terms; “permit” means a permit granted under regulation 25; “provisional licence” means a licence granted under regulations 15 or 16; “Schedule” means the Schedule hereto; “scheduled journey” means one of a series of journeys which are undertaken between the same two places and which together amount to a systematic service operated in such a manner that the benefits thereto are available to members of the public from time to time seeking to take advantage of them; “Territory airline” means an airline that has its principal place of business in the Territory and holds an air operator certificate under the provisions of article 64 of the Air Navigation (Overseas Territories) Order 2007; “tour operator” means an independent travel organisation engaged in arranging package tours to include carriage by air. Applications of Regulations
3. These Regulations do not apply to aircraft of any State which is a party to the International Air Service Transit Agreement which fly across the Islands without landing or land in the Islands in accordance with the provisions of that Agreement. PART II
AIR TRANSPORT LICENSING BOARD Air Transport Licensing Board
4. (1) The Air Transport Licensing Board, shall consist of not less than four or more than seven members, as the Governor may from time to time determine; of whom three such members shall be permanent employees of the Civil Aviation Authority.
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(2) The members shall be appointed by the Governor by instrument in writing from amongst persons appearing to him to have knowledge and skill in matters relating to aviation, industry, trade, finance or administration not less than three being persons ordinarily resident in the Islands. (3) The Governor shall appoint one of the members to be Chairman, who shall be the Managing Director of the Civil Aviation Authority or the duly appointed Director of Civil Aviation for the Islands for the time being. (4) Subject to this regulation, every member holds office for three years from the date of the appointment or until the appointment has been revoked, whichever is the earlier. A person who has vacated office is eligible for reappointment. (5) The Governor may from time to time appoint deputy members including a Deputy Chairman to act in place of members who are ill or absent. Such deputy members may be appointed for a specified term or in the place of a specified member during the period of the illness or absence. (6) The Governor may remove any member or deputy member by reason of their inability or misbehaviour. (7) A member or deputy member of the Board, other than an official member, may at any time resign the office by instrument in writing addressed to the Governor, and from the date of the receipt by the Governor of such instrument shall cease to be a member of the Board. (8) Where the Governor proposes to appointment any person to be a member of deputy member or the Board he shall, before making the appointment, require that person to declare whether he or she has any, and if so what, financial interest in any undertaking which— (a) provides transport for passengers, mail or cargo; or (b) owns or operates aerodromes; or (c) manufactures aircraft, accessories; or
aircraft
engines
or
(d) supplies aircraft fuels or lubricants; or (e) provides tours or other travel arrangements; or (f) provides hotel accommodation. (9) If a member or deputy member of the Board acquires any such interest, he or she must, within four weeks after doing so, give notice of it in writing to the Governor specifying the interest so acquired, and the Governor after taking the matter into consideration may declare that the member or deputy member has vacated his or her office and the seat of such member or deputy member shall become vacant. (10) The Governor may appoint a person to be secretary to the Board, who may be a permanent member of the Civil Aviation Authority. 5
(11) The Board may employ such other officers and servants as, in the opinion of the Governor, are necessary to enable it to effectively discharge its duties. (12) A majority of members of the Board present for the despatch of business forms a quorum. (13) The decision of the Board shall be arrived at by a majority of those present and forming a quorum; the person presiding having a casting but not original vote. PART III
FUNCTIONS AND DUTIES OF THE BOARD Functions of the Board
5. The functions of the Board are to grant, refuse, revoke, suspend or vary any air transport licence in accordance with the provisions of these Regulations and such other functions that are conferred upon it.
Minister may give directions
6. (1) The Minister may, after consultation with the Governor, give the Board such directions of a general character as to the performance of its functions as the Minister thinks it appropriate to give in the interests of the Islands. (2) The Board has the power to do anything which is calculated to facilitate, or is conducive or incidental to, the performance of any of its functions.
Grant of licence
7. (1) The Board shall determine applications for licences to carry passengers, mail or cargo by air for hire or reward subject to such conditions as may be specified in each licence. (2) The Board may attach such conditions to any licence as it thinks fit, having regard to the nature and circumstances of the application for a licence.
Application for licence
8. (1) Application for licences must be made in the form and manner, and contain the particulars, prescribed in the Schedule. (2) Each applicant must provide the Board such further information as it reasonably requires for the discharge of its duties in relation to the application.
Publication of particulars of application
9. The Board shall cause to be published, in the manner prescribed in the Schedule, such particulars of applications for licences received by it as are there prescribed.
Objection to application
10. A public officer acting on the instructions of the Governor, a person providing transport by air for passengers, mail or cargo, or an owner of an aerodrome may, in the form and manner and within the time prescribed in the Schedule, make representation or objection regarding any application for a licence. 11. (1) The Board may, for the purpose of considering applications for licences, hold enquiries in public or private and
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Inquiries by Board
must hold an enquiry in public if the applicant, or a person who has duly made representations or objections, requires the Board to do so by application in that respect in the form prescribed in the Schedule and must give the parties an opportunity to be heard. (2) Before holding such an enquiry the Board must give to the application and to any person who has duly made any representations or objections regarding the application, such notice in such form as is prescribed in the Schedule and must give the parties an opportunity to be heard. 12. Where an application is made to the Board for a licence to remain in force for a period not exceeding thirty days and it is satisfied that it is in the public interest that the application should be determined with expedition, it may determine the application and grant a licence accordingly; and in such case the provisions of this Part as to the publication of particulars of applications, the making of objections and representations, and the holding of enquiries at the instance of the applicant or an objector do not apply.
Power of Board to determine application without publication of particulars
13. The Board in exercising its discretion to grant, or to refuse, licences or to attach conditions must have regard to the economic development of air services generally, the reasonable interests of users, and the provision of such services and in particular—
Matters to be considered by Board
(a) the existence of other air services in the area through which the proposed services are to be operated and the effect on such services, in particular scheduled services, of authorising any new services which the applicant proposes to provide; (b) the local demand for air transport; (c) the degree of efficiency and regularity of such air services as are already provided in that area, whether by the applicant or other operators; (d) the period during which such services have been operated; (e) the probable extent to which applicant will be able to provide satisfactory services from the point of view of safety, continuity, regularity of operation, frequency, punctuality, reasonableness of charges, and generally; (f) the financial resources of the applicant; (g) the type of aircraft proposed to be used; (h) the remuneration and general conditions of employment of aircrew and other personnel employed by the applicant, and the Board must take into consideration any objections or representations properly made in accordance with these Regulations. 7
Duration of licence
14. The Board may grant licences to remain in force for such periods, not exceeding five years, as it may in each case determine, commencing on the date on which the licence is expressed to take effect but, if on the date of the expiration of a licence, an application to the Board is pending for the grant of a new licence in substitution for an existing one, the existing licence shall continue in force until the application is determined.
Provisional licence pending determination of application
15. The Board may, pending the determination of an application for a licence, grant to the applicant a provisional licence to remain in force until the application is determined.
Provisional licence to continue operation of air service
16. Where any person has within one month of the date when these Regulations came into operation duly applied for a licence authorising the holder to perform such journeys as are necessary to enable the holder to continue to operate any air service and satisfies the Board that immediately before that date the holder was operating that service, the Board shall grant to the applicant a provisional licence authorising the holder to continue to operate that service and such provisional licence remains in force— (a) if the application is granted, until the date from which the licence is expressed to take effect; or (b) if the application is refused, for a period of three months from the date of the Board's decision.
Publication of particulars of decisions
17. The Board must cause to be published in the manner prescribed in the Schedule such particulars of its decisions on applications for licences and of its decisions to revoke or suspend licences as are prescribed in the Schedule.
Power to revoke or suspend licence
18. (1) Subject to sub-regulation (2), the Board may revoke or suspend a licence— (a) if the holder has, since the licence was granted, been convicted of an offence against regulation 26; or (b) where the holder is a body corporate, if any officer of that body corporate has, since the licence was granted, been convicted in his or her capacity as such officer, of an offence against regulation 26; or (c) if the holder has failed to comply with a condition subject to which the licence was granted. (2) Before revoking or suspending a licence under subregulation (1) (c), the Board must— (a) give to the holder of the licence such notice as is prescribed in the Schedule, specifying grounds upon which it is proposed to revoke or suspend the licence; and (b) hold a public enquiry, if the holder of the licence by such notice as is prescribed in the Schedule requires it to do so, 8
and the Board must not revoke or suspend the licence unless it is satisfied that the failure of the holder to comply with conditions was frequent or wilful. (3) The expression “officer� in sub-regulation (1)(b) includes a Director, General Manager, Secretary or other similar officer and any person who, with the Board of the body corporate, acts as such officer.
Fee for licence
19. Licences may at any time be surrendered by the holder to the Board for cancellation. If, during the currency of a licence, the holder applies to the Board for a new licence in substitution for the current licence, the holder must, if a new licence is granted, surrender the current licence for cancellation on the date when the new licence takes effect.
Surrender of licence
20. The holder of a licence must obtain permission from the Board before introducing any different types of aircraft other than those proposed or in operation when the licence was issued.
Permission required for use of different types of aircraft other than for which licence issued
21. (1) There shall be payable to the Board or to such body as it shall designate in that respect— (a) for every licence issued a fee of $1,250.00 for each year, or part of a year, the licence remains in force; (b) for every provisional licence granted under regulation 15 or regulation 16, a fee of $500.00. (2) No refund of a fee paid for the grant of a licence shall be made, whether on the surrender of the licence or otherwise, save where the licence is surrendered before its normal date of expiry upon the grant of a new licence authorising a service over the same route, in which case there shall be refunded the sum of $250.00 for each full year of the unexpired period of the licence, but the holder shall in addition to the normal fee for the new licence pay a special additional fee of $100.00. 22. The applicant or licence holder must submit to the Board details of its proposed fares and charges and the Board may require a licence holder to justify any fare or charge if the same appears to the Board to be either predatory (i.e. below cost and designed to drive a competitor out of the market) or excessive. 23. (1) Holders of licences must make returns in writing to the Board giving, in respect of each month to which the return relates, the particulars in such form as specified by the Board with regard to all services authorised under the licence. (2) Returns must be sent to the Board not later than two months after the expiration of the month to which they relate.
Annual report by Board
24. The Board must make an annual report to the Governor as to the exercise of its functions during the year.
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Proposed fees and charges to be submitted to Board
Holder of licence to make monthly return
PART IV
RESTRICTION OF UNLICENSED CARRIAGE BY AIR FOR REWARD Application of Part IV
25. This Part applies to the carriage of passengers, mail or cargo by air for hire or reward or other valuable consideration on any scheduled or non-scheduled journey.
Licence required for use of aircraft on nonscheduled journey
26. (1) Subject to these Regulations, it is unlawful to use an aircraft for the provision in the Islands of any air service to which this Part applies except in accordance with a licence granted by the Board authorising the operator to operate such aircraft on such flight as the flight in question. (2) The holder of a licence granted under these Regulations must comply with its terms and conditions. (3) Any person who uses an aircraft in contravention of any provision of this regulation is guilty of an offence and liable on summary conviction— (a) in the case of a first offence to a fine not exceeding two thousand dollars or imprisonment for a term not exceeding six months or both; (b) in the case of a second or subsequent offence to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding twelve months or both. (4) This regulation does not apply to journeys performed under the authority of a foreign registered aircraft operating permit issued under the provisions of the Air Navigation (Overseas Territories) Order from time to time in force in the Islands. (5) No person shall hold himself or any other person out as being a person who may offer flights for the purpose of carriage of passengers, cargo or mail by air for hire or reward unless he or that other person holds a licence granted under these regulations or a permit issued under the provisions of the Air Navigation (Overseas Territories) Order from time to time in force in the Islands. PART V
EXEMPTIONS Exemption from requirements of Regulations
27. Subject to regulation 26(4) nothing in these Regulations applies to— (a) United Kingdom airlines in respect of such journeys, and on such routes, as the Governor may from time to time specify; (b) air transport operators whose principal place of business is in a country other than— (i) the United Kingdom; or
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(ii) a territory for whose foreign relations Her Majesty's Government in the United Kingdom is responsible, in respect of journeys performed by such operator in accordance with the provisions of an agreement for the time being in force between the Government of that country and Her Majesty's Government in the United Kingdom. PART VI
GENERAL PROVISIONS 28. It is a condition of every licence that the requirements of every law and regulation for the time being in force in the Islands relating to air transport shall be compiled with at all times during the currency of the licence in connection with all journeys made under it. 29. A licence may not be transferred or assigned:
Compliance with enactments relating to air navigation to be condition of every licence
Licence not transferable
Provided that in the event of the death, incapacity, bankruptcy, sequestration or liquidation of the holder of a licence or permit, or the appointment of a receiver or manager or trusts in relation to the business of the holder of a licence or permit, the person for the time being carrying on that business shall, if within fourteen days of his commencing to do so, he makes application to the Board for a new licence or permit, be entitled to provide the air services authorised by the existing licence or permit subject to the conditions thereof, until the application is determined. 30. Nothing in these Regulations requires the disclosure by any applicant for a licence, to any person other than the Board, of information as to the financial resources of the applicant, and any such information received by the Board from an applicant is confidential. Construction of expression “provisional licence�
Financial information of applicant to be treated as confidential
31. References to licences in any regulation refer also to provisional licences. 32. Nothing in these Regulations confers upon holders of licences or upon any other person any right to the continuance of any benefits arising from these Regulations or from any licences granted hereunder or from any conditions attached to such licences. 33. (1) No proceeding for an offence against these Regulations shall be instituted except with the consent to the Director of Public Prosecutions. (2) Where an offence against these Regulations has been committed by a body corporate, every person who at the time of the commission of the offence was a Director, General Manager, Secretary or other similar officer of the body corporate, or was purporting to act in any such capacity, is deemed to be guilty of
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No right to continuance of benefits of licence
Procedure in case of offences
that offence, unless that person proves that the offence was committed without their consent or connivance and that they exercised all such diligence to prevent the commission of the offence as they ought to have exercised having regard to the nature of their functions. Revocation
34. The Air Transport (Licensing of Air Services) Regulations 1953 are hereby revoked.
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SCHEDULE 1. Applications for licences must be made through the Director of Civil Aviation to the Board in in the form requested by the Director of Civil Aviation. 2. Applications for licences which involve more than five flights in any one direction must be received by the Director of Civil Aviation at least ninety days prior to the proposed date of commencement of the service, except that where such notice is not possible a sufficient period to allow the Board to determine the application. 3. The Board must, within fourteen days of the receipt of an application for a licence, cause it to be published in the manner prescribed in paragraph 11 and specify— (a) a day being not less than fourteen days nor more than twenty-one days after the date of the first publication of the notice by which any representations or objections may be made to the Board; and (b) a further day being not less than seven nor more than fourteen days after the day above mentioned by which any notice requiring the holding of a public enquiry for the purpose of determining such application may be given to the Board. 4. Representations or objections regarding applications for licences must be made in duplicate to the Board on or before the day specified for such purpose in the notice with regard to the application in accordance with the provisions of paragraph 3 in the form, if any, specified by the Director of Civil Aviation and must contain the specific grounds upon which it is based and any special conditions which it may be desired should be attached to the licence, if granted. 5. Forthwith upon the receipt of any representations or objections the Board must cause a duplicate copy thereof to be delivered to the applicant in respect of whose application such representations or objections have been made. 6. Notices requiring the holding of enquiries in public for determining any application for a licence shall be given, in case of the applicant, within seven days of the delivery to the applicant of the duplicate copy of the representations or objections and, in the case of a person who has made any representations, or on before the day specified for such purpose in the notice published under paragraph 3. 7. In cases where for the purpose of determining an application for a licence an enquiry, in public or in private is to be held by the Board, the notice to be given in writing by the Board to the applicant and to any person who has duly made representations or objections with regard to the application must be not less than seven days.
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8. (1) In any case in which it is proposed to suspend or revoke a licence, notice of such intention must be sent to the holder of the licence. (2) If the holder of a licence to whom a notice specified in sub-paragraph (1) has been sent requires a public enquiry to be held the holder must give notice to the Board in the form specified by the Director of Civil Aviation. 9.
Particulars of the decisions of the Board— (a) on applications for licences; and (b) to revoke or suspend licences,
must be published by notice in the manner prescribed in paragraph 11: Provided that no reasons for any decision shall be published unless the Board otherwise directs upon a request being made by the applicant, or the licence holder or former holder, or any other party who entered an objection or representation in the case. 10. The monthly return to be made to the Board by the holders of licences must be in the form required by the Board and contain such particulars as are therein indicated and such further particulars as may from time to time be required by the Board. 11. Publication under this Schedule shall be by notice published in at least two issues of a newspaper circulating on a regular basis in the Islands at an interval of not less than one week. 12. Applications for licences for non-scheduled journeys must be made to the Board prior to any final arrangements being made with any other interested parties.
MADE this 14th day of June 2013.
DAMIAN RODERIC TODD GOVERNOR
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